Special Immigrant Juvenile Status - A Helpful Option For Some Children In Difficult Circumstances

As a potential solution to the predicament of children born in other countries who have been abandoned, neglected or abused, most people are aware of the possibility of international adoption. International adoption is a common way by which children born in other countries become the children of United States parents and acquire United States citizenship. Yet some foreign-born children in desperate need of a caregiver find themselves, through various scenarios, physically present in the U.S., but without having been adopted. For these children, a traditional international adoption may not be possible, but they may qualify for a unique and complex, and potentially life-saving, legal avenue to address both who may care for and raise them and how they might be able to legally remain in the United States permanently.

A "Special Immigrant Juvenile status" petition (frequently referred to as "SIJ" or "SIJS") is a relatively uncommon but helpful avenue to address unusual and difficult circumstances for some foreign-born children. When granted, an SIJ petition allows a child to receive lawful permanent residence (often referred to as "green card") status and a path to citizenship without requiring the child to first return to his or her country of origin. A successful SIJ petition simultaneously involves the placement of the child with a qualified caregiver. An SIJ case will involve proceedings in state court (typically in juvenile court, although recent statutory changes have made it possible for some family court proceedings to be utilized) that make certain required factual findings and determinations as to the child's custody and guardianship, followed by immigration proceedings to petition for and obtain Special Immigrant Juvenile status and therefore lawful permanent resident status. Thus, these cases can address an abandoned, neglected or abused child's need for both a permanent caregiver where doing so is in his or her best interests and can positively resolve the child's immigration status as well.

While special immigrant juvenile status petitions have been an option for many years, and have helped some children, the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) contained significant changes that both streamlined the SIJ process and widened the categories of children who may qualify, thus providing this potential avenue for more foreign-born children in the United States.

It is critical to note from the outset that these cases require the skills and evaluation of both an immigration attorney and a family law attorney (particularly a family law attorney with experience and expertise in juvenile court matters). A successful SIJ case will require the services of a qualified practitioner to seek and obtain relevant state court orders in juvenile court for the child, while also requiring the services of a qualified practitioner to seek the appropriate immigration relief. It is critically important that these steps be followed in the correct order. These cases are not for the faint of heart — but they can produce tremendously rewarding results on behalf of children while involving a mix of state and federal law and regulation that is sure to intellectually challenge even the most experienced practitioners.

Who Qualifies For A Special Immigrant Juvenile Petition?

A child may qualify for an SIJ petition if he or she is physically present in the United States; suffered abuse, abandonment or neglect; and can be declared dependent upon the juvenile court. The specifics are contained in the Immigration and Nationality Act, codified at 8 U.S.C. §1101(a)(27)(J). A qualified immigration attorney should be consulted before proceeding in state court, in order to ensure that the child's circumstances will likely fit the criteria for a Special Immigrant Juvenile Status petition, even though the first steps to formally take in a potential SIJ case are actually through the state court.

Particularly after the passage of the TVPRA, many of the inadmissibility grounds that might otherwise apply do not bar a child's ability to seek Special Immigrant Juvenile status. Whether the child entered illegally or entered legally but is now out of status and similar issues do not present the same bar to immigration relief as they might for adults. Some inadmissibility grounds, particularly those involving crimes, may still apply. Again, it is critical to consult a qualified immigration attorney before beginning the state court proceedings.

In order for a child to ultimately qualify for SIJ relief, first the state court must find that the child suffered abuse, neglect or abandonment, and the state court must declare the child dependent upon the juvenile court and place the child's custody either with a state agency or an individual. In Minnesota, our juvenile court is the venue in which such relief may be sought on behalf of a child, by filing a Child In Need of Protection or Services (CHIPS) petition pursuant to Minn. Stat. §260C.007, subd. 6. In evaluating a potential SIJ case, therefore, it must be determined by a qualified immigration attorney whether the child is likely to qualify for Special Immigrant Juvenile Status relief, and it must be determined by a qualified family law attorney whether the child could likely be adjudicated by the juvenile court as a Child In Need Of Protection Or Services (CHIPS).

Minnesota law provides 17 statutory bases for a CHIPS adjudication. The most commonly applicable to those cases where a child may qualify for an SIJ petition are those involving children who have been abandoned; been victims of physical or sexual abuse; or are without the care, shelter and support they need. See Minn. Stat. §260C.007, subd. 6(1-5). Ironically, one of the first obstacles commonly encountered in an SIJ case is a misunderstanding or misapplication of the CHIPS statute itself.

Proceeding With A CHIPS Petition In Juvenile Court

The vast majority of CHIPS petitions in Minnesota are initiated by the county attorney's office, on behalf of children who have suffered abuse or neglect by their parents here in Minnesota. That is what the CHIPS statutes and the child protection system were designed to address. However, enforcement of the statute is not exclusively the province of the public authorities. In fact, "[a]ny reputable person" * * * having knowledge of a child in this state * * * who appears to be in need of protection or services * * * may petition" for a CHIPS adjudication. Minn. Stat. §260C.141, subd. 1(a). On that basis, any private individual with knowledge of a child's situation may seek to proceed in juvenile court with a private CHIPS petition. Typically, these petitions are brought by the individual(s) now caring for the child here in Minnesota.

A number of requirements must be met in order for such a private CHIPS petition to be successful. The child's situation must, prior to the private CHIPS petition being filed, be reported to the local responsible social services agency (typically, the Child Protection intake division, in the county where the child resides or is found). Minn. Stat. §260C.141, subd. 1(b); Minnesota Rules of Juvenile Protection Procedure Rule 33.02. If this report to Child Protection has not been made, the court administrator may reject the petition for filing. Id. In order to ensure that this prerequisite for a successful private CHIPS petition is properly completed, it is best if the family law attorney provides a written report to Child Protection intake, notifying it of the facts and circumstances surrounding the child as well as the intent to proceed with a private CHIPS petition. As a practical matter, the more this letter can make clear to Child Protection that (a) the abandonment, abuse or neglect of the child did not occur at the hands of the petitioners; (b) that services such as foster care or treatment that would cost the county are not being sought; and (c) that the petitioners intend to move forward in court to promptly and properly address the child's needs, including seeking guardianship and custody, the less likely it is that the county Child Protection authorities will seek to become actively involved in the child's situation or to actually place the child into foster care.

In addition, the private CHIPS petition itself must be submitted on the form developed by the state court administrator, and include specific facts as required by the statute. Minn. Stat. §260C.141; Minnesota Rules of Juvenile Protection Procedure rule 33.02, subd. 2.

If the report to Child Protection was properly made and the private CHIPS petition is properly drafted and statutory requirements were met, the court administrator then passes the petition to a judicial officer, who reviews the private CHIPS petition itself to determine if the petition establishes a prima facie case for adjudication of the child as one in need of protection or services, under one of the statutory bases provided in Minn. Stat. §260C.007. Then and only then — if that prima facie threshold has been met, after the report was properly made and the private petition properly prepared — will the private CHIPS case then be opened, assigned a file number, a summons generated, and the first hearing (typically referred to as an "admit/deny" hearing) allowed to be set.

The county attorney must be served with the summons and petition. The county agency has an automatic right to intervene as a party into a private CHIPS petition. Minnesota Rules of Juvenile Protection Procedure Rule 23.01. A guardian ad litem will likely be appointed for the child; depending upon a court's procedures, a guardian ad litem may be appointed before the initial hearing or at the hearing itself.

In proceeding with an SIJ case, it may be tempting to think that the "rightness" of your position on behalf of an abandoned, abused or neglected child, with petitioners who typically are altruistically seeking to care for the child, is "without question." In reality, the delicacy of the matter at this stage cannot be overstated. A practitioner in such a case must be very aware of the legal issues, the factual issues, the interpersonal dynamics, and the overarching political issues that influence and affect the child's case. For example, it is common for Child Protection social workers, or the county attorney, to insist that there is "no basis" to file a private CHIPS petition "because the child doesn't meet Child Protection intake criteria" or because the abuse or neglect the child suffered is not current or was not at the hands of the petitioners. It is critical to understand — and convey to others if need be — that the criteria the Department of Human Services and Child Protection use to "screen" their Child Protection intake reports are not identical to the statutory provisions for a CHIPS adjudication under 260C.007. The statutory bases for CHIPS adjudication are set forth by the letter of the statute — they are not limited to current abuse and they are not limited to the agency's screening criteria. The statutory bases for CHIPS adjudications are in fact often more inclusive than the agency's screening criteria, so it is not at all uncommon for a private CHIPS petition to be based upon facts that would not result in the local Child Protection agency actually taking action on behalf of a child. Therefore, the first hurdle one may have to clear on behalf of a child who may ultimately qualify for SIJ status relief may be to get past these objections within the child welfare system and to actually get in front of the juvenile court judge in search of the appropriate order.

Political considerations are unfortunately very much a part of these cases. Immigration is a "hot button" political issue, and people frequently have strong feelings about immigration-related issues that may become quite apparent. In some cases, either the county attorney or the judge may accuse the petitioners or their counsel of attempting immigration fraud or of an attempt to improve the petitioner's immigration status by "back door" means, or even to "subvert federal law." These officials may make it clear that they do not like the fact that the petitioners and counsel are ultimately going to be seeking an immigration benefit for the child once the child's need for a guardian or caregiver has been addressed.

In reality, nothing about a properly approached SIJ case is at all fraudulent, "back door" or otherwise inappropriate. In proceeding properly in juvenile court, as directed by federal law and applicable regulations, and in doing so in order to accomplish the dual goals of ensuring that the child will receive a permanent caregiver or guardian while also ensuring that the child's immigration status will be addressed, a practitioner is in fact proceeding as contemplated and directed by the applicable law and regulations. This is not a misuse of federal law; it is not a misuse of the juvenile court or Minnesota law; nor is it an attempt to subvert or avoid immigration law. Rather, it is an attempt to use a specialized "door" to appoint a permanent caregiver or guardian for the child and address immigration for those children who qualify.

To try to avoid such political arguments and implied or expressed allegations of improper motives by either the petitioners or counsel, it may be helpful to address the issue "head-on" in the filings with the Court. If the private CHIPS petition and related pleadings make it very clear that the goal on behalf of this child is twofold — to rectify the child's prior abandonment, abuse or neglect and appoint a designated guardian or caregiver in his or her best interests, while also making it ultimately possible to address the child's immigration status — it is less likely that the court, county attorney or others will have concerns of political intent or subversion of the juvenile court, state law or immigration systems. It is also helpful to have the private CHIPS petition and relevant pleadings provide the relevant federal citations so that both the county attorney and the judicial officer are easily able to access them if they doubt their existence.

Once a private CHIPS petition has crossed the prima facie threshold, the next step is to proceed to seek the actual adjudication order with the necessary factual findings and designation of a custodian and guardian for the child. In many cases, the adjudication of the child as a child in need of protection or services on the basis of one of the statutory provisions provided may be achieved by agreement with the county attorney, once a full explanation of the factual circumstances and legal issues has been provided. This outcome is ideal, as it avoids the cost and risk of an evidentiary hearing. Even where the county is initially resistant, once the county investigates the situation and concludes the petitioners' motives are genuine, the facts as reported are true, and the child is in fact in need of a permanent caregiver or guardian, such resistance can often be overcome and an adjudication by agreement can be reached. However, if the county is actively opposing the private petition CHIPS petition, consideration should be given to proceeding with an evidentiary hearing. It is, after all, ultimately a question for the judicial officer — not the county attorney — as to whether the facts and circumstances as alleged in the private CHIPS petition do or do not qualify the child to be adjudicated as a Child In Need of Protection Or Services pursuant to Minn. Stat. §260C.007.

In proceeding with the private CHIPS petition, the child does not need to be placed in foster care, either to qualify for a CHIPS adjudication under Minnesota law or to qualify ultimately for SIJ relief. The TVPRA removed the formerly applicable requirement that a child be determined eligible for long-term foster care in order to qualify for SIJ relief. This change made by the TVPRA has made the CHIPS adjudication followed by SIJ relief route available to many more children under Minnesota law, as eligibility for long-term foster care is quite limited.

It is critical that in order to later meet the requirements for the SIJ petition to be granted, certain factual findings be included in the CHIPS adjudication order. In particular, the facts of the child's abuse, abandonment or neglect must be included, and a finding that it would not be in the child's best interests to return to his country of origin must be expressly made. A CHIPS adjudication order lacking such findings will not support a successful SIJ petition.

Custody and guardianship of the child may be placed with the individual petitioners in the CHIPS adjudication order. Again due to changes through the TVPRA, it is no longer necessary that the child be placed in the custody or guardianship of an agency to later seek SIJ relief. Therefore, it is not necessary that the child, even though adjudicated as a child in need of protection or services, be placed in the care and custody of the county agency. In fact, to maintain maximum control for the petitioners and to avoid the county incurring costs with regard to the child, it is usually preferable to not place custody or guardianship with an agency and instead to ask the court to place custody and guardianship of the child with the individual petitioners in the private CHIPS matter. This may require some detailed discussion with the judicial officer and potentially the county attorney. The CHIPS statutes themselves, under Minnesota law, were not written with such complex situations in mind, and the general language of the disposition alternatives contained in the relevant CHIPS statutes is not very helpful. It may be necessary to have a frank discussion about how to structure an order in the CHIPS proceeding to provides the appropriate placement of the child's custody and guardianship during the pendency of the CHIPS proceeding, within the bounds of Minnesota law.

After A Successful CHIPS Adjudication

After the child has been adjudicated as a Child In Need Of Protection or Services, the immigration attorney — who should have been consulted early on to ensure that a petition for Special Immigrant Juvenile Status would be appropriate — should be provided a certified copy of the juvenile court order. The immigration attorney may then move forward with the SIJS petition itself. A number of specialized requirements will apply, which may include, for example, the necessity for the child to be seen by an immigration-approved physician, certain filing fees and other requirements. Again, an experienced immigration attorney must be "on board" to ensure a high likelihood of success with an SIJS petition.

When the United States Citizenship and Immigration Service (USCIS) has verified the receipt of the SIJS petition and has taken the matter under advisement, notice should be provided to the juvenile court, the county attorney and the guardian ad litem. Pursuant to Minnesota law, review hearings must be held by the juvenile court every 90 days. Providing these updates as to the progress of the immigration matters concerning the child demonstrates the petitioners' commitment to properly moving forward for the child's benefit and provides the court and others the information they need for the 90-day review hearings. During this time frame — after the child has been adjudicated as a child in need of protection or services, and before the juvenile court matter is actually closed — it may also be necessary for the petitioners to take further steps to work with the county or guardian ad litem. Some counties are stricter than others in adhering to statutory requirements for case plans during a CHIPS matter. In general, it is wise for the petitioners to courteously, and promptly, provide whatever face-to-face meetings, records, releases or other information the guardian ad litem or county social services agency may require. This level of care will demonstrate attention to the child's needs and will lessen any possibility of the county acting to remove the child or placing him or her in foster care and will provide to the court and others the information needed for the 90-day review hearings.

The juvenile court in Minnesota will properly be concerned with permanency for the child. Minnesota law is structured to move children out of the CHIPS arena, so to speak, and either to a return home (as most children adjudicated CHIPS have been removed from parents struggling with abuse or neglect issues) or to move the child to the permanent custody of a relative or adoptive family. A private CHIPS petition sought on behalf of a child in these circumstances is different than the "normal" CHIPS case, and in fact typically the petitioners are themselves seeking to permanently care for the child. The petitioners may wish to ultimately adopt the child, or they may wish to have permanent custody of the child. They may be considered "kin" to the child by virtue of their relationship with and care-giving of the child and thus may qualify as relatives under the relevant statutes in Chapter 260C. Whatever the permanency plan may be for a particular child, it is important to clearly articulate the permanency goal to the juvenile court, county attorney and others and to be moving forward in compliance with the CHIPS statutes while simultaneously remaining in contact with the immigration attorney and ensuring that no steps are taken in the CHIPS matter that could derail the child's pending SIJS petition with the USCIS.

If the petitioners' ultimate goal is adoption of the child, consideration must be given to ensuring that remaining issues are also handled properly. The immigration attorney should be consulted on timing, to ensure that any adoption is only sought at such a time that the SIJS petition will not be adversely affected. Depending upon the child's circumstances and documentation, a private termination of parental rights petition may ultimately be necessary as well, to ensure that the child's legal relationship with his or her biological parents has been properly and completed severed. The petitioners may have to complete additional steps to be qualified to adopt the child under the Minnesota adoption statutes contained in Chapter 259, such as completing an adoption study with a licensed agency. Or the petitioners may qualify, by virtue of the juvenile court order placing the child's guardianship and custody with them, for exemption from some or all of those adoption requirements. Assisting a family through the multilayered, complex process of a private CHIPS petition, followed potentially by a termination of parental rights and/or adoption action, while also assisting their immigration attorney to seek Special Immigrant Juvenile Status relief, is not a short or easy process. It is, however, often tremendously rewarding.

The Rewards

My first CHIPS/SIJ case was a pro bono case, undertaken years ago before the passage of the TVPRA, and involved a teenage girl who had been tortured during the civil war in Rwanda. Since then, I have had the privilege of working with cases involving children from numerous countries, typically children who were abandoned early in their lives with overwhelming medical needs that could not be met in their country of origin. These children come to the United States by routes as varied as their stories. Many come in the care of, or as a result of, Minnesotans doing missionary or charitable work or through what may have been planned originally as a temporary stay for medical care. These children frequently have significant medical and/or psychological needs, and caregivers who, by whatever mechanism this particular child originally "landed in their laps," have now committed to do whatever it takes to care for the child permanently and to ensure that the child can remain in the United States. These are complex cases, full of unique stressors, yet can be quite rewarding, to both the family law and the immigration practitioners involved.